PUBLIC INTERNATIONAL LAW: INTERNATIONAL COURTS AND ENFORCEMENT
Tochukwu Nwekwo *
INTRODUCTION AND BRIEF HISTORY
When the term law is used, it is generally referred to as consisting of a series of binding or enforceable rules regulating behaviour, which to some extent reflects the ideas and preoccupations of the society, within which it functions. In the words of the renowned nineteenth century English Philosopher John Austin elaboration on the theory of law, he based it upon the notion of a sovereign issuing a command backed by a sanction or punishment. But, since international law did not fit within that definition it was relegated to the category of positive morality. Basic concepts ...view middle of the document...
Yet, in the second half of the 18th century, a shift
occurs towards positivism in international law. In addition, the idea of international law as a means for maintaining international peace is challenged due to the increasing tensions between the European great powers (France, Prussia, Great-Britain, Russia and Austria). At the end of the century, Immanuel Kant believes that international law as a law that can justify war does not serve the purpose of peace anymore, and therefore argues in Perpetual Peace and the Metaphysics of Morals [two of his books] for creating a new kind of international law. After World War I, an attempt was made to establish such a new international law of peace, of which the League of Nations was considered to be one of the cornerstones, but this attempt failed unfortunately. The Charter of the United Nations (1945) in fact reflects the fact that the traditional notion of state sovereignty remains the key concept in the law of nations.
Perhaps the first instrument of modern public international law was the Lieber Code, passed in 1863 by the Congress of the United States, to govern the conduct of US forces during the United States Civil War and considered to be the first written recitation of the rules and articles of war, adhered to by all civilized nations, the precursor of public international law.
INTERNATIONAL COURTS AND ENFORCEMENT
Since, international law neither has no established compulsory judicial system nor international police force/law enforcement body for the settlement of disputes or a coercive penal system, it is not as straightforward as managing breaches within a domestic legal system. However, there are means by which breaches are brought to the attention of the international community and some means for resolution. For example, there are judicial or quasi-judicial tribunals in international law in certain areas such as trade and human rights. The formation of the United Nations, for example, created a means for the world community to enforce international law upon members that violate its charter through the Security Council.
Since international law exists in a legal environment without an overarching "sovereign" (i.e., an external power able and willing to compel compliance with international norms), "enforcement" of international law is very different than in the domestic context. In many cases, enforcement takes on Coasian characteristics, where the norm is self-enforcing. In other cases, defection from the norm can pose a real risk, particularly if the international environment is changing. When this happens, and if enough states (or enough powerful states) continually ignore a particular aspect of international law, the norm may actually change according to concepts of customary international law. For example, prior to World War I, unrestricted submarine warfare was considered a violation of international law and ostensibly the casus belli for the United States' declaration of...